The Freddie Gray Case, Update 33.3: The Circus Is In Town!

I have often–so often I’m beginning to sound like an endless digital loop (we older folk used to say “like a broken record”)–noted the bizarre, backward nature of the Freddie Gray prosecutions (the Freddie Gray Archive is here). This Twilight Zone quality exists because of the unprofessional, unethical, entirely politicized, and increasingly desperate attempts of the Baltimore City Prosecutors to convict somebody of something–anything–because Freddie Gray.

It began with probable cause statements devoid of probable cause. In fact, the PC statements, written by a sheriff’s Major–Sam Cogen–who apparently had no active role in the hasty, secretive investigation conducted by Prosecutor Marilyn Mosby, were copied, verbatim, for each of the six officers. They weren’t specific to individual defendants! They weren’t directed to each officer, nor did they provide probable cause to prove the elements of each crime. Major Cogen, according to the Baltimore Sheriff’s website, is an administrator, not an investigator:

Major Cogen currently commands the Special Operations Section that is comprised of warrant service, federal taskforce assignments, K-9, child support enforcement and special enforcement details.

Regular readers are aware that since that entirely improper and astounding anomaly, things only got worse. Mosby’s merry band of social justice incompetents prepared arrest warrants for innocent Baltimore citizens with the same names as some of the officers. Mosby and her city councilman husband appeared onstage with Prince–the artist formally known as a “beware; radiation” symbol exposed to too much radiation–who wrote and performed a social justice song for the occasion. She held a bizarre news conference promising social justice for Freddie Gray and sympathetically radical protestors nationwide. The Prosecution slow rolled and withheld discovery, arguably lied to the court, and in general, obstructed the fair administration of justice.

This too is so bizarre as to be nearly beyond words. Prosecutors with a strong, ethical case are only too glad to provide all required discovery, and even that they are not strictly required to provide. They know solid evidence will do nothing but encourage defendants to make deals favorable to the prosecution, and perhaps, even roll over on their fellow criminal defendants. Occasionally, defendants, realizing they have no chance at trial, plead guilty outright. To behave as the Prosecution has consistently behaved is counter to justice, and counter to the conduct of a winning case.

Most recently, the Prosecution’s attempt to force Officer William Porter to testify in the trials of essentially all of his fellow officers, even though such testimony would force him to involuntarily surrender his rights under the 5th Amendment, has thrown their entire strategy–whatever that might be; circular firing squad?–into disarray. They’re now claiming even though they didn’t need Officer Porter to testify in these trials when they planned their trial strategy, after his mistrial, they suddenly found his testimony vital, and told Judge Williams they have a right to change their minds. A rational judge’s response would be” “forget that.”

Now, according to Baltimore.com, their actions have caused another series of bizarre legal moves involving Maryland’s second highest court and its highest court, and have, once again,thrown the entire case into chaos:

In a rare move, Maryland’s highest court agreed Thursday to halt trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants.

The Court of Appeals’ decision to consider the issue of Porter’s testimony against his fellow officers postpones their trials, including one that had been scheduled to start Monday. The high court will hear expedited oral arguments in the appeals March 3, but it is unclear when it might rule.

The move is “rare,” because appeals courts virtually never involve themselves with cases until a verdict has been rendered in the originating court. The trial scheduled to begin February 22 is that of Officer Edward Nero.

Judge Chasanow

It’s very unusual to have a pretrial ruling that is appealed like this,’ said Howard S. Chasanow, a retired Court of Appeals judge.

But Chasanow said the high court’s intervention could bring a quicker resolution to the cases in the long run, settling contentious issues now instead of allowing them to play out in Circuit Court and then be appealed to the Court of Special Appeals, the state’s second-highest court.

‘They obviously recognize both the public importance of the issue and the need for an expeditious decision,’ Chasanow said.

What Chasanow is not saying–or perhaps, what Baltimore.com chose not to include–is that “very unusual” means “virtually never,” and the High Court took this virtually unprecedented move because of the unethical behavior of the Prosecution. There is, unsurprisingly, another important issue involved:

Kenneth Ravenellcredit: citypaper.com

Defense attorney Kenneth Ravenell, who is not connected to the Gray case, said the appeals court proceedings will be watched closely, in part because they could set a precedent for whether prosecutors can seek intervention from higher courts when handed detrimental rulings prior to a case’s conclusion.

‘It is such a novel issue that I think everyone involved in the criminal justice system is kind of waiting with bated breath to see how the court handles it,’ Ravenell said.

A question the court will consider is whether the state’s request in the Gray cases is even an appealable issue.

Regular readers will also recall that this case is so disastrous the Attorney General inserted himself into it:

Earlier this month, the Maryland attorney general’s office, representing the Baltimore state’s attorney’s office, petitioned the high court to bypass the lower-level appeals process and expedite a review of Williams’ decisions regarding Porter’s testimony. The attorney general’s office wrote that all five cases should be reviewed ‘because they provide an appropriate vehicle for this court to consider the application of [the state immunity statute] from all sides.

This is the central issue. Can a criminal defendant be forced to testify against his codefendants while his own trial is pending? A closely related issue is whether the state has the same power to compel testimony when the federal government may well bring criminal charges against the defendant. It is common, and constitutionally permissible, to offer limited immunity to witnesses–people whose 5th Amendment rights are clearly not implicated–to compel their testimony, not defendants. Officer Porter’s retrial is tentatively set for June, and the Prosecution is surely desperate to convict someone, anyone, of something before then. They hope momentum might replace evidence. Likely, they want Porter to testify in the hope of catching him in a perjury trap, even though they have told Judge Williams they have no such intention.

In orders handed down Thursday, Chief Judge Mary Ellen Barbera agreed that the high court should consider the cases, outlining three specific questions to be addressed by both sides in written briefs in the coming days.

In the cases against Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White, in which Porter has been ordered to testify, the question is whether the state’s immunity statute can protect Porter’s Fifth Amendment right against self-incrimination by denying prosecutors the right to use anything he says on the stand against him in his retrial, scheduled for June.

In seeking to block Williams’ order forcing Porter to testify in the Goodson and White trials, Porter’s attorneys contend that only witnesses, not co-defendants, can be granted immunity and be forced to testify. They also contend that the immunity granted might not protect Porter from federal prosecution or perjury charges. Prosecutors argue that the immunity would be sufficient to protect Porter’s constitutional rights, and Williams agreed.

This is not quite correct. Williams agreed on one hand, but on the other expressed reservations, even suggesting that he believed the prosecution was setting a perjury trap. Also, there is no question that state level immunity would not protect Porter in a federal prosecution. State and federal justice systems are separate, their rules are often very different, and one may be tried in both systems, using the same evidence for the same incidents, without invoking double jeopardy.

In the cases against Nero, Officer Garrett E. Miller and Lt. Brian W. Rice, the high court will consider whether Williams had the right to use his discretion not to compel Porter to testify, and whether that decision constituted a ‘final,’ and therefore appealable, judgment.

Attorneys for the officers contend Williams’ decision was not a final judgment and cannot be challenged at this juncture. Prosecutors have said that under the state’s immunity statute, it is solely the decision of Baltimore State’s Attorney Marilyn J. Mosby whether a particular witness being compelled to take the stand would serve the public interest, and that Williams’ role in facilitating that decision was solely ministerial.

Williams said he is not simply a rubber stamp for Mosby, and that the prosecution’s request that he compel Porter to testify in the Nero, Miller and Rice trials was ‘simply an attempt at subterfuge’ aimed at controlling the order in which the officers are tried.

This too is an important issue. Judges are normally accorded substantial leeway in conducting trials. For example, judges are commonly not required to accept plea bargains, even though both sides have agreed to them. Should judges that suspect prosecutors are engaging in unethical, perhaps even illegal–“subterfuge”–
practices, be forced to ignore them and thereby deprive defendants of a fair trial?

While there is no deadline for the high court to rule, it said it would hear the appeals on an expedited schedule. Barbera has made it a goal of the court to hand down rulings during the same term it hears arguments. The court’s current term ends in September.

One would suspect that the court would render a decision soon indeed. Otherwise, why take the case at all, let alone on an expedited schedule? Maryland is apparently relatively strict on observing the 6th Amendment right to a speedy trial. Take too long and the court could find itself ruling on whether its own actions violated the defendant’s right to a speedy trial. This would, of course, be entirely ironic and bizarre enough to fit nicely into this debacle. While a decision may, for Maryland only, resolve a knotty legal issue, there are many devils lurking in the details:

Douglas Colbert, a University of Maryland law professor, said that while the high court’s intervention is rare, it was in part necessitated by the intermediate court’s decision to take up Porter’s appeal.

‘It was highly unusual for the Court of Special Appeals to intervene before trial and before the case resulted in a conviction,’ Colbert said. ‘Appeals courts typically become involved after conviction, to review the fairness of the outcome. … I think the high court is saying, ‘Let’s do our best to resolve this issue without any further delay.’

‘I am glad to see the Court of Appeals expediting the resolution of the immunity issue by exercising, essentially, its right to bypass the Court of Special Appeals,’ he said. ‘The sooner that issue is resolved, the better.’

But Ravenell said the Court of Appeals might be ‘opening up a can of worms.’

‘What message does it send for future cases by taking this case? Are you inviting the state in the future … to hijack a case when they get a denial from a judge?’ he asked.

Again, the bizarre and unprofessional actions of the Prosecution in the Gray case are at the root of all of this apparently unprecedented legal maneuvering:

In a case Ravenell argued that went to the U.S. Supreme Court, prosecutors sought appellate court intervention after a judge ruled that a key statement could not be admitted as evidence.

Ravenell said the case was able to move up through the appeals courts because prosecutors argued that they could not try the case without the statement. But Ravenell noted that prosecutors in the Gray case only recently said that Porter is a crucial witness against Nero, Miller and Rice.

‘The state had intended to try these officers without Porter,’ Ravenell said, ‘so it clearly can’t be their argument that Porter is indispensable to their case and that once the judge said they can’t call him, that they can’t proceed.

Yet this is precisely what the Prosecution is saying. Either they are completely incompetent and didn’t recognize from the beginning that the results of their own, outside normal channels, investigation would require Porter’s testimony, or they are willing to ignore the law to convict at least one of the officers of something–anything.

We tried to learn something from our experience in trying Officer Porter,’ Chief Deputy State’s Attorney Michael Schatzow told Williams at the time. ‘We think we have the right to change our mind, and we acknowledge we are changing our mind.

What Schatzow, apparently a prosecutor of long experience, is actually saying is what he learned is he has no case, and is hoping he can somehow use Porter to pull off a dramatic, Perry Mason moment.

Gerard P. Martin, a defense attorney who is not involved in the case, said the appeals court had no choice but to step in and “straighten out the immunity issues before this circus gets worse.’

‘Sure it is unusual, but this is not your normal case,’ Martin said. ‘Politics and law are not made to mix well. The court had to give guidance to a lower court system that seems to be afraid to deal with this situation.

Quite so Mr. Martin, quite so: a circus indeed.

Final Thoughts:

I’ve said it before, and must apparently endlessly repeat it. To date, the Prosecution has demonstrated that this is an entirely political persecution, without legal merit. I could find no probable cause to believe any of the officers committed any crime in the probable cause statements. I found no testimony in the Porter trial–even considering the help of a very prosecution friendly media–to produce probable cause to support any elements of any of the crimes charged against Porter. If there is no PC, there can be no proof beyond a reasonable doubt. In short, I have found no evidence that a professional, ethical prosecutor would have brought any of these charges.

credit: washingtonpost.com

Those arguing the opposite are not arguing evidence. They produce no probable cause. They have no competent witnesses. Even their coroner was made to look the fool by the testimony of Dr. Vincent DiMaio, the man who actually wrote the books on forensic pathology. Their entire argument amounts to: No seat belts! Freddie Gray! Black Lives Matter! We can riot again, anytime! Freddie Gray!

I remain open to actual evidence of wrong doing on the part of any of the six officers. I have yet to find any. None. This too is bizarre. Even investigating these cases from afar, as I and other analysts must necessarily do, one always finds evidence that could reasonably be interpreted to indicate guilt. Absent such evidence, no reasonable prosecutor would bring charges. But that’s the problem. In this case, there are no reasonable, or competent, prosecutors.

That doesn’t mean they might not be able to find a jury disjointed or political enough to convict one or more of the officers on one or more of the charges. Remember what happened to Porter. What happens if his next trial ends in a mistrial? Will they take a third run at him with the same evidence? Will they keep trying Porter until he dies of old age?

But consider what that would mean. If the evidence in the Gray case were really so compelling that any of the officers could and should be convicted, shouldn’t that evidence–the same evidence in every trial–lead any jury of reasonable men and women to uniformly convict every officer charged with the same offenses, offenses proved beyond a reasonable doubt by the same evidence? This is what we would see if there were such evidence. But there is not. This too is why these cases should never have been brought.

By all means, gentle readers, if you know of any rational source with credible evidence–not “FREDDIE GRAY!”–please provide links or other means for me to examine it. I am no longer willing to give the Prosecution the benefit of the doubt, but I am willing to change my mind if there is cause to do so.

I think it would take some serious mental gymnastics for the Maryland Court of Appeals to side with Mosby and compel a charged defendant to testify against a co-defendant.

The following case is from the federal 2nd Circuit Court of Appeals (which has jurisdiction in NY, Vermont, and Connecticut), and here the court decided that even a defendant who pleaded guilty and whose case wasn’t going to trial couldn’t be compelled to testify in a co-defendant’s trial. I would expect no less for a defendant who has pleaded not guilty and whose case is going to trial.

“Codefendant was subject to a real threat of prosecution for perjury, and thus had valid claim of privilege against self-incrimination at defendant’s trial, even though she had pleaded guilty, where her anticipated testimony ran counter to various statements at her earlier plea colloquy, and while anticipated responses to other questions posed may not have immediately contradicted her plea colloquy, it was possible that as counsel probed codefendant’s reliability, she may have exposed herself to a perjury charge. U.S. v. Lumpkin, C.A.2 (N.Y.) 1999, 192 F.3d 280. Witnesses ​ 297(13.1)”

And so far everybody has been concerned about Porter’s 5th Amendment rights… his 6th Amendment right to have an attorney present during questioning is also a complicated matter. Are they gonna put an extra seat up there on the witness stand so Porter can confer with his attorney before answering?

Based on my experience as an attorney who has worked in a state appellate court system for over 15 years, it is probably not a good thing for the winning side (Officer Porter) for an appellate court to be activist by not allowing things to play out in the normal course. As some noted in the article, one of the problems for the appellate court is going to be how to cabin this precedent in. State appeals in the midst of criminal prosecution, interlocutory appeals, are not the norm; they happen, but often only if the State would have no case absent a reversal of the trial court’s ruling. The court is going to set precedent for interlocutory appeals in all manner of co-defendant leveraging cases if it is not careful. I do not see how the court can make Porter testify under the circumstances, but they may try it anyway by creating some bizarre restrictions on use of his testimony. I hope Porter’s attorneys are setting up to ask for SCOTUS review, they may need it. Absent blanket immunity from both the feds and the state, I would be tempted to tell Porter not to testify no matter what the appellate court said, particularly absent SCOTUS having said that he had to testify, and maybe even if SCOTUS did that.

Thanks for your take. I’ve refrained from predicting any outcome for the reasons you mentioned. This could become very bizarre indeed, and cause far more problems than it solves, not only for Maryland, but elsewhere if it is heard and decided by SCOTUS.

Agreed. As I understand the circumstances the victim was on the landing below where the cops were and Liang’s negligent discharge shot ricocheted off of a concrete wall and struck the victim. Liang should have at most faced departmental discipline for poor trigger discipline while on vertical patrol. Instead he is red meat thrown to the SJW’s, just like the six BPD cops.

It wasn’t a negligent discharge, but an accidental one. Liang claims he didn’t have his finger on the trigger, and there’s no evidence that he did, but the prosecution claimed not that he fired NEGLIGENTLY, but DELIBERATELY, with absolutely reason to make that claim. It may be a one-in-ten-million occurence with Glocks, but guns do accidentally discharge, from slamfire and other causes, or maybe his finger slipped onto the trigger as he was pushing the door open. It was a politically motivated BLM prosecution from start to finish, and I hope he wins on appeal.

Has anyone noticed that Mosby wants to try Porter in June , and start the rest in September . In other cases Officers Tensing , Slager and Van Dyke are scheduled Oct 21, 24 and 31 . I’d say the SJW’s are lining up a get out the minority vote party for November with possible acquittals . New evidence in Slager’s trial shows it is not as cut and dried as originally thought . . Tensing video clearly shows he was dragged anywhere from 25 to 25 feet and the car was moving pre shot .,, I don’t know how Cincy PD video people missed that one . ( or maybe they do know and just putting on a show for the locals ) Van Dykes ,must be more to it , or he would not have went a year without a charge and Mike broke down his case and stated the video was not conclusive for a charge .
Officer Liangs is just a case of a need for a sacrificial lamb .. I can’t help but think these local cases are being driven with a lot of Federal pressure .

“… I don’t know how Cincy PD video people missed that one . ( or maybe they do know and just putting on a show for the locals )…” Of course it’s for show. They see what they want to see in the video, or pretend to.

Reblogged this on PUMABydesign001's Blog and commented:
“Probable cause” “Due process” “Beyond a reasonable doubt” all non-existent in the lexicon of social justice warriors with an axe to grind. Not to mention this year’s election.

Char Char Binks said: Cincy video
I think the definer on that one is that severals days after the video ( and probably hundreds of calls to Cincy), Deters declined to prosecute the officer who stated that he saw Tensing dragged . They came out and said he did not claim that he saw him dragged . ( and YET they needed to convene a grand jury ??????? for that decision ) Hmm doubletalk.

Mike if you ever decide to do a story on the Tensing debacle, I have an email with multiple online breakdowns of frame by frame analyses that convincingly shows he was dragged , These are from several posters who determined he was dragged and how far, based on several different methods and references . Post here and Let me know and I will send them .

Mike, I know you’re probably working on a blog post as I type this, but I just wanted to make sure you were aware that the Maryland Court of Appeals just ruled that Porter has to testify in ALL FIVE of the other officers’ trials.